Resources for 8-24-11 Seminar - AILA webCLE

2. Put together a package of materials to support your request forprosecutorial discretion. To better make a record, make your requestin writing. Consider providing a detailed cover letter or brief,supported by material that will demonstrate that your client isdeserving of prosecutorial discretion. Include all the facts that animmigration officer will need to make an informed decision, but be asconcise as possible.3. Use the agency memoranda to support your request. The exerciseof favorable prosecutorial discretion is not mandatory in anycircumstance. However, the memoranda do provide authority for anofficer and/or local office to act favorably. For example, where a clientin removal proceedings has an adjustment application pending beforeUSCIS (because, e.g., she is an “arriving alien” and only USCIS hasjurisdiction over the application), argue that the removal case should beterminated pursuant to the August 20, 2010 Morton memo. See JohnMorton, Assistant Secretary, ICE, “Civil Enforcement: Priorities for theApprehension, Detention, and Removal of Aliens” (June 2010).Another example is found in the Howard memo, which contains thefollowing advice to local ICE counsel: "[w]here a motion to reopen foradjustment of status or cancellation of removal is filed on behalf of analien with substantial equities, no serious criminal or immigrationviolations, and who is eligible to be granted the relief except that themotion is beyond the 90-day limitation contained in 8 C.F.R. §1002.23, strongly consider exercising prosecutorial discretion."William Howard, Principal Legal Advisor, ICE, “ProsecutorialDiscretion” (Oct. 24, 2005) (emphasis added). The 2011 Mortonmemoranda contain similarly strong directives.4. Highlight the positive factors in your client’s case. Review thecriteria supporting favorable action that are listed in the relevantmemos and highlight the applicable criteria for the officer. Where aclient falls within a classification deserving “particular care,” be sure toemphasize and build upon this fact. Morton, “Exercising ProsecutorialDiscretion,” at 5. Develop other favorable equities, just as you wouldin a case seeking a discretionary benefit or relief from removal fromDHS.5. Address any problems or inadequacies in the case or the evidence.It is better to address such problems directly because otherwise it couldappear that you were trying to hide information from the officer, whichcould undercut the credibility of your other arguments. Moreover,when there is negative information, you should not only disclose it, butalso provide mitigating information. For example, when there is aconviction, provide evidence of completion of probation or parole.12